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IN THE HIGH COURT OF SOUTH AFRICA /ES
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
DATE
SIGNATURE
CASE NO: A716/2012
DATE: 23/5/2014
IN THE MATTER BETWEEN
YONDA INVESTMENTS CC
(Registration number: 2001/070192/23)
APPELLANT
AND
FRIEDRICH ROHR
1ST RESPONDENT
ANNA ELIZABETH ROHR
2ND RESPONDENT
JUDGMENT
MAKGOBA, J
[1]
This is an appeal against the whole of the judgment and order of a single judge
(Baqwa J), which judgment was delivered on 25 June 2012, dismissing the
appellant's claim with costs.
2
[2]
The appellant (plaintiff a quo) instituted action against the first and second
respondents wherein it claimed specific performance in terms of a Deed of Sale
concluded between the appellant and the first respondent dated 25 June 2006.
The property that was sold in terms of the Deed of Sale was known as Residential
Unit number 11 in the sectional title scheme known as Wild Fig ("the property").
The purchase price amounted to R475 000,00 of which the purchasers were to pay
a deposit of R5 000,00.
After summons was issued the appellant accepted the respondent's repudiation of
the Deed of Sale and sold the property to a third party for an amount of
R425 000,00. The appellant then amended its cause of action to claim payment of
R45 000,00 in damages calculated as the lesser purchase price obtained for the
property, R39 900,00 in damages calculated as occupational rent for the months
of December 2008 to November 2009 and R4 258,80 in damages calculated as
levies for the months December 2008 to November 2009. The total claim is
therefore one for payment of an amount of R89 158,80.
[3]
The court a quo in dismissing the appellant's claim found that the appellant failed
to prove that a binding and enforceable agreement was entered into and also failed
to prove the quantum of the alleged damages.
3
[4]
The parties to this appeal are ad idem that for the appellant to succeed in the
appeal and for the judgment of the trial court to be reversed, all of the following
aspects need determination in favour of the appellant:
4.1
Could the appellant sell the immovable property at the time the Deed of
Sale was entered into on 25 June 2006?
4.2
Did the appellant prove that Ms Tania Erasmus who signed the purported
Deed of Sale on behalf of appellant as seller, did have written authority to
sell the immovable property at the time the Deed of Sale was signed on
25 June 2006?
4.3
Was the purported Deed of Sale signed on 25 June 2006 invalid by virtue
of the provisions of section 15(1) and (2) of the Matrimonial Property Act
88 of 1984?
4.4
[5]
Did the appellant prove the quantum of its damages?
The following facts are common cause or have not been disputed at the trial:
(a)
On 25 June 2006 the appellant, a close corporation and represented by its
employee, one Tania Erasmus, entered into a written agreement of sale of
the property with the first respondent for the sum of R475 000,00.
(b)
At the time of signing the Deed of Sale on 25 June 2006 the appellant was
not yet the registered owner of the land or the property to be sold. The
appellant became the registered owner of the property on 25 July 2006.
4
(c)
Ms Tania Erasmus who signed the Deed of Sale on behalf of the appellant
did not have and could not produce any written authority by the appellant
to sell the property on its behalf or sign the Deed of Sale on its behalf.
(d)
The first respondent was married in community of property to the second
respondent. At the time of signing the Deed of Sale on 25 June 2006 the
first respondent did not have the consent of the second respondent to
purchase the property. The second respondent also did not sign the Deed
of Sale.
(e)
Tania Erasmus was a friend of the respondents and knew for the last four
years that the parties were married in community of property.
[6]
I proceed to deal, ad seriatim, with the issues raised in the determination of this
appeal.
Could the appellant sell the immovable property at the time the Deed of Sale was
entered into on 25 June 2006?
[7]
The appellant contends that there was a valid contract of sale despite the appellant
not being the owner of the property. In this regard counsel for the appellant relied
on Wessels: The Law of Contract in South Africa, par 3400 at page 977:
"According to our law, a person can sell the property of another, whether
it be land or movables, and if the vendor fails to carry out his contract, he
5
is liable in damages as if the property which he offered to sell were his
own."
[8]
On the other hand the respondents contend that there is no valid agreement of
sale. Reference was made to the case of Kleynhans Bros v Wessels Trustee
1927 AD 271 at 290 where the following was said:
"No doubt one person may sell the property of another but, as the contract
of sale is a contractus bona fide, the seller warrants the absence of dolus
in every case. And where a person knowingly sells the property of another
as his own without the owner's consent, he commits a fraud upon the
buyer and cannot found on his own fraudulent conduct."
In this case fraud is defined in a narrower sense as "a false statement made with
knowledge of its falsehood for the purpose of inducing the other party to enter
into a contract". It gives as one of the examples of fraud the case of a seller
holding himself out as the owner of the property when it is not his. In casu the
appellant no doubt knew that it was not yet the owner of the property but
purported to sell the property to the first respondent.
[9]
In the case of Peter Flaman & Co v Kokstad Municipality 1919 AD 427 at 434
Solomon ACJ said:
"By civil law a contract is void if at the time of its inception its
performance is impossible: impossibilium nulla obligatio. So also where
6
a contract has become impossible of performance after it had been entered
into the general rule was that the position is then the same as if it had
been impossible from the beginning."
In casu the appellant only became the owner of the property upon registration of
Deed of Transfer no T91415/2006 on 25 July 2006 a month after the Deed of Sale
was entered into on 25 June 2006. It is trite that ownership of land may only be
transferred from one owner to another by a deed of transfer executed and attested
by the Registrar of Deeds.
[10]
No evidence was produced at the trial to the effect that the erstwhile owner of the
immovable property gave authority to the appellant or Ms Tania Erasmus to
proceed with the sale of a part of the immovable property prior to the transfer or
ownership thereof to the appellant on 25 July 2006.
The learned judge a quo therefore correctly found that prior to 25 July 2006 the
plaintiff close corporation could simply not sell the property referred to in the
Deed of Sale as it was not the owner thereof. Any attempted representation that
the appellant was the owner of the property was simply incorrect and consisted of
a misrepresentation as shown in the case of Kleynhans Bros, supra.
Did the appellant prove that Ms Tania Erasmus who signed the purported Deed of
Sale on behalf of the appellant as seller, did have written authority to sell the
immovable property at the time the Deed of Sale was signed on 25 June 2006?
7
[11]
Section 2 of the Alienation of Land Act 68 of 1981 provides that no alienation of
land (including a unit in a sectional title scheme) shall be of any force and effect if
not contained in a written deed of alienation signed by the parties thereto or by
their agents acting on their written authority.
In casu the Deed of Sale was clearly not signed by the appellant's sole member
and only authorised representative to sign a contract of sale of land on behalf of
the close corporation, Mr Den Dunnen. It is common cause that the Deed of Sale
was signed by Ms Tania Erasmus on behalf of the appellant.
[12]
A member of a close corporation need not have written authority to enter into a
contract for the sale of land. But when a member authorises a third person to
enter into a contract for the sale of land, the authorisation must be in writing. See:
Northview
Shopping
Centre
(Pty)
Ltd
v
Revelas
Properties
Johannesburg CC and another 2010 3 SA 630 (SCA) par [25] at 640E.
[13]
It is common cause that Ms Tania Erasmus is not a member of the appellant.
Therefore she required express written authority of the appellant to sign the Deed
of Sale. On the facts of this case she did not have such express written authority.
The appellant contends that the written authority need not appear from a separate
document but can be read or gleaned from the written agreement itself. In the
written agreement in casu the name of Tania Erasmus was added by herself in
8
handwritten form in the blank space purporting to show that she was duly
authorised.
[14]
In my view such purported authorisation cannot be sufficient to constitute a
written authority emanating from a principal. The reason being that the objective
of the requirement of written authority is to minimise risk of subsequent disputes
concerning the authority of the agent who signed having the extra degree of
certainty which a written document affords. If the parties to the agreement did not
themselves sign the agreement, there should be no doubt as to the authority of the
agent who signed on their behalf.
[15]
The requirement of the phrase in the Alienation of Land Act "their written
authority" is that the grant of the authority must be in writing and the writing must
be authenticated as that of the authorising principal, even when concise phrases
like the contents of a telegram or even an sms is used because the identity of the
sender is determinable. See: Hugo v Gross 1989 1 SA 154 (C).
[16]
Counsel for the appellant put much reliance on the case of Van der Merwe v
DSSM Boerdery Bk 1991 2 SA 320 (T) to drive home the point that the written
authority need not be contained in a separate document but can be gleaned from
the Deed of Sale itself. In this case an estate agent who was present when the
contract of sale of a farm was signed filled in the particulars of the parties on the
printed offer to purchase. Above the words "the seller" the estate agent had filled
9
in the applicant's (Van der Merwe's) name followed by the words "acting on
behalf of T K van der Merwe (applicant's wife) in the sale of the undermentioned
property". The applicant's wife was present. The question that arose was whether
the inclusion of these words in the Deed of Sale constituted written authority for
purposes of section 2(1) of the Alienation of Land Act. The court (Schabort J)
was of the opinion that the evidence showed that the abovementioned words were
intended to be the seller's authorisation to her husband and that, although it was an
unconventional place and manner in which the estate agent had documented such
written authority, the courts had to bear in mind that formalism and
comprehensiveness were often to be sacrificed in the heat of business
transactions. The court accordingly held that the authorisation complied with the
formal requirements of section 2 of the Act and that the contract was valid.
[17]
With respect, the judgment in the abovementioned case cannot be sound. It is a
judgment of a single judge and we, sitting as a Full Bench, are not necessarily
bound by such judgment more so when we are of the view that the judgment is
clearly wrong. The judgment does not take into consideration the fact that the
statute specifically requires "written" authority and clearly states this as a
requirement. The court compromised the strict requirement of the Act on the
ground that "formalism and comprehensiveness were often sacrificed in the heat
of business transactions". This is clearly wrong.
10
[18]
In any event the facts of this judgment are clearly distinguishable for the
following reasons:
18.1
The applicant in the case (Van der Merwe) and his wife who provided him
with authorisation were both present when the agreement was signed;
18.2
The applicant's wife was present sitting next to the applicant when he, the
applicant, explained verbally in the presence of his wife that she gave him
authorisation and she did not interrupt to deny this statement;
18.3
The action of the applicant's wife of not disputing the explanation by the
applicant that he was authorised by his wife clearly left the impression that
she confirms the authority.
[19]
In casu there exists no evidence whatsoever that the appellant's sole member,
Mr Den Dunnen, provided any authority, let alone in writing, to Ms Tania
Erasmus to act on behalf of the appellant in the sale of the property. The evidence
of Tania Erasmus confirms that she did not receive any instruction in this regard.
[20]
In the absence of written authority given by the appellant's sole member, Mr Den
Dunnen, which is common cause, the Deed of Sale signed by the third party,
Ms Erasmus, is thus invalid. The court a quo's finding in this regard cannot be
faulted.
Was the purported Deed of Sale signed on 25 June 2006 invalid by virtue of the
provisions of section 15(1) and (2) of the Matrimonial Property Act 88 of 1984?
11
[21]
The relevant provisions of section 15 of the Matrimonial Property Act read as
follows:
"(1)
Subject to the provisions of subsections (2), (3) and (7) a spouse in
a marriage in community of property may perform any juristic act
with regard to the joint estate without the consent of the other
spouse.
(2)
Such spouse shall not without the written consent of the other
spouse –
(a)
...
(b)
...
(c)
...
(d)
...
(e)
...
(f)
...
(g)
as a purchaser enter into a contract as defined in the
Alienation of Land Act, 1981 (Act 68 of 1981), and to
which the provisions of that Act apply;
(h)
(3)
...
(4)
...
(5)
...
bind himself as surety.
12
(6)
The provisions of paragraphs (b), (c), (f), (g) and (h) do not apply
where an act contemplated in those paragraphs is performed by a
spouse in the ordinary course of his profession, trade or business.
(7)
...
(8)
...
(9)
When a spouse enters into a transaction with a person contrary to
the provisions of subsection (2) or (3) of this section, or an order
under section 16(2), and –
(a)
that person does not know and cannot reasonably know
that the transaction is being entered into contrary to those
provisions or that order, it is deemed that the transaction
concerned has been entered into with the consent required
in terms of the said subsection (2) or (3), or while the
power concerned of the spouse has not been suspended, as
the case may be."
[22]
It is common cause that the first respondent and second respondent were married
in community of property, a fact which Ms Tania Erasmus as a friend was aware
of. On the evidence before the court a quo the first respondent did not obtain the
consent of the second respondent when he signed the Deed of Sale. The appellant
specifically stated in its amended particulars of claim that the second respondent
consented in writing to the conclusion of the agreement. This is incorrect in the
light of the evidence on record.
13
[23]
Furthermore the appellant specifically stated in the alternative in its amended
particulars of claim that in the event that it is found that the second respondent did
not consent in writing to the conclusion of the agreement (as is common cause) at
the time of the signature of the agreement, the appellant did not know and could
not reasonably have known that the agreement was being entered into by the first
respondent without the written consent of the second respondent – section
15(9)(a) of the Matrimonial Property Act.
This averment is denied by the
respondents in their plea and the appellant was put to the proof thereof.
[24]
It is clear from the evidence produced at the trial that the appellant's employee,
Ms Tania Erasmus, in completing the Deed of Sale was well aware that the
respondents were married and had been aware of this fact for about four years by
25 June 2006 as a result of the existing friendship.
It was incumbent upon
Ms Erasmus to have made an inquiry as to the marital regime of the respondents
especially when it relates to the contract of the purchase of immovable property.
In Visser v Hull and Others 2010 1 SA 521 (WCC) it was held that a third party
was required to take steps to establish whether the contracting spouse had
obtained the consent of the non-contracting spouse.
See also Bopape and
another v Moloto 2000 1 SA 383 (T); [1999] 4 All SA 277.
[25]
The appellant contends further that the written permission of the second
respondent was not required as contemplated in section 15(2) of the Act in that
14
when concluding the Deed of Sale the first respondent did so in the ordinary
course of his profession, trade or business - section 15(6) of the Act. In this
regard appellant's counsel referred to the case of Strydom v Engen Petroleum
Ltd 2013 2 SA 187 (SCA) par [13].
[26]
The appellant's contention or argument is misplaced. It is clear from the evidence
on record that the first respondent is a salaried employee of the National Parks
Board. He wanted to acquire the property for residential purposes upon his
retirement. It cannot be said that the property would have been acquired in the
ordinary course of his profession, trade or business.
[27]
The court a quo correctly found that the purported Deed of Sale signed on
25 June 2006 was invalid by virtue of the provisions of section 15(1) and (2) of
the Matrimonial Property Act 88 of 1984.
[28]
Having decided and/or answered the first three questions in this appeal against the
appellant, I do not deem it necessary to decide or answer the fourth and last
question relating to proof of the quantum of damages. Once it has been found
that the Deed of Sale is invalid and unenforceable the question of damages does
not arise.
[29]
The appeal is accordingly dismissed with costs.
15
E M MAKGOBA
JUDGE OF THE GAUTENG DIVISION, PRETORIA
A716-2012
I agree
W HUGHES
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I agree
S STRAUSS
ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA
HEARD ON: 14 MAY 2014
DELIVERED ON:
MAY 2014
FOR THE APPELLANT: ADV B C STOOP
INSTRUCTED BY: STEYN & CLARKE ATTORNEYS
c/o ROSS & JACOBS INC
FOR THE RESPONDENTS: ADV J C KLOPPER
INSTRUCTED BY: P J LOURENS ATTORNEYS
c/o D B M ATTORNEYS